[Federal Register Volume 67, Number 34 (Wednesday, February 20, 2002)]
[Proposed Rules]
[Pages 7657-7660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4068]
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ENVIRONMENTAL PROTECTION AGENCY
48 CFR Parts 1509 and 1552
[FRL-7147-4]
Acquisition Regulation: Contractor Performance Evaluations
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
amend the EPA Acquisition Regulation to revise its policy and
procedures regarding the evaluation of contractor performance. This
action is necessary because EPA's current regulation eliminates the use
of the National Institutes of Health (NIH) Contractor Performance
System to record contractor performance histories for construction
acquisitions. This revision will allow EPA contracting officers to
utilize the NIH system for construction type acquisition in lieu of the
Federal Acquisition Regulation prescribed Standard Form 1420,
Performance Evaluation (Construction Contracts). The NIH obtained
approval from the Civilian Agency Acquisition Council regarding the use
of its construction module in lieu of Standard Form 1420.
DATES: Comments should be submitted no later than March 22, 2002.
ADDRESSES: Submit written comments to Frances Smith at the following
address: U.S. Environmental Protection Agency, Office of Acquisition
Management, Mail Code 3802R, 1200 Pennsylvania Avenue, NW., Ariel Rios
Building, Washington, DC 20460. Comments may be sent electronically to
[email protected]. Electronic comments must be submitted as an
ASCII file, avoiding the use of special characters and any form of
encryption. Floppy disks (3\1/2\ size) may also be submitted with
comments in Corel WordPerfect format or ASCII file format. Do not
submit confidential business information through E-mail.
FOR FURTHER INFORMATION CONTACT: Frances Smith, U.S. Environmental
Protection Agency, Office of Acquisition Management, (202) 564-4368.
SUPPLEMENTARY INFORMATION:
A. Background
This proposed rule amends the Environmental Protection Agency
Acquisition Regulation Subpart 1509.170 and 1552.209-76 to allow EPA
contracting officers to utilize the construction module in the National
Institutes of Health's Contractor
[[Page 7658]]
Performance System. EPA currently uses the services module in the NIH
system to evaluate contractor performances of both large and small
businesses who are awarded EPA contracts in excess of $100,000. This
proposed rule will allow contracting officers to use either the
services module or the construction module in the NIH system, depending
on the type of acquisition.
B. Executive Order 12866
This proposed rule is not a significant regulatory action for the
purposes of Executive Order 12866; therefore, no review is required by
the Office of Information and Regulatory Affairs within the Office of
Management and Budget (OMB).
C. Paperwork Reduction Act
The Paperwork Reduction Act applies to this proposed rule, and the
information collection request has been evaluated by the Office of
Management and Budget. The Office of Information and Regulatory Affairs
within the Office of Management and Budget has issued OMB Clearance No.
9000-0142 for the collection of contractor performance information.
Comments regarding Paperwork Reduction Act concerns should be sent to
the Office of Management and Budget (Attn: EPA Desk Officer).
D. Regulatory Flexibility Act (RFA), as Amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5
U.S.C. 601 et seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impact of today's proposed rule on
small entities, small entity is defined as: (1) A small business that
meets the definition of a small business found in the Small Business
Act and codified at 13 CFR 121.201; (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district or special district with a population of less than 50,000; and
(3) a small organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603
and 604. Thus, an agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule.
This proposed rule requires no reporting or record-keeping by small
or large business contractors. Rather, it provides EPA contractors with
a formal opportunity, generally once a year per contract, to review and
comment on their specific performance evaluations as conducted by the
cognizant EPA contracting officer. Therefore, this proposed rule will
have no adverse or significant economic impact on small entities.
E. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess
their regulatory actions on State, local, and Tribal governments, and
the private sector. This proposed rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and Tribal governments, in the aggregate, or the private
sector in one year. Any private sector costs for this action relate to
paperwork requirements and associated expenditures that are far below
the level established for UMRA applicability. Thus, this proposed rule
is not subject to the requirements of sections 202 and 205 of the UMRA.
F. Executive Order 13045
Executive Order 13045, Protection of Children from Environmental
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to
any rule that: (1) Is determined to be economically significant as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This proposed rule is not subject to Executive Order 13045 because
it is not an economically significant rule as defined by Executive
Order 12866, and because it does not involve decisions on environmental
health or safety risks.
G. Executive Order 13132
Executive Order 13132 entitled ``Federalism'' (64 FR 43255, August
10, 1999) requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' as defined in the
Executive Order include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Under
Section 6 of Executive Order 13132, EPA may not issue a regulation that
has federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
federalism implications and that preempts State law, unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. Thus, the requirements of section 6
of the Executive Order do not apply to this proposed rule.
H. Executive Order 13175
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by
[[Page 7659]]
tribal officials in the development of regulatory policies that have
tribal implications.'' ``Policies that have tribal implications'' is
defined in the Executive Order to include regulations that have
``substantial direct effects on one or more Indian tribes, on the
relationship between the Federal government and the Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to this proposed rule.
In the spirit of Executive Order 13175, and consistent with EPA
policy to promote communications between EPA and tribal governments,
EPA specifically solicits additional comment on this proposed rule from
tribal officials.
I. National Technology Transfer and Advancement Act of 1995
EPA will use voluntary consensus standards, as directed by section
12(d) of the National Technology Transfer and Advancement Act of 1995
(NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), in its
procurement activities. The NTTAA directs EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
This rulemaking does not involve technical standards. Therefore,
EPA is not considering use of any voluntary consensus standards. EPA
welcomes comments on this aspect of the interim rulemaking, and,
specifically, invites the public to identify potentially applicable
voluntary consensus standards and to explain why such standards should
be used in this regulation.
J. Executive Order 13211 (Energy Effects)
This proposed rule is not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it
is not a significant regulatory action under Executive Order 12866.
List of Subjects in 48 CFR Parts 1509 and 1552.
Government procurement.
Therefore, 48 CFR Chapter 15 is proposed to be amended as set forth
below:
1. The authority citation for Parts 1509 and 1552 is revised to
read as follows:
Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended,
40 U.S.C. 486(c); and 41 U.S.C. 418b.
PART 1509--[AMENDED]
2. Section 1509.170-3 is amended by revising paragraphs (a), (c),
and adding paragraph (d) to read as follows:
1509.170-3 Applicability
(a) This subpart applies to all EPA acquisitions in excess of
$100,000, except for architect-engineer acquisitions, acquisitions
awarded under the Federal Acquisition Regulation (FAR) Subpart 8.6,
Acquisitions from Federal Prison Industries, Incorporated, FAR Subpart
8.7, Acquisitions from Nonprofit Agencies Employing People Who Are
Blind or Severely Disabled, and FAR 13.5, Test Program for Certain
Commercial Items. FAR 36.604 provides detailed instructions for
architect-engineer contractor performance evaluations.
* * * * *
(c) EPA Form 1900-26, Contracting Officer's Evaluation of
Contractor Performance, and EPA Form 1900-27, Project Officer's
Evaluation of Contractor Performance, applies to all performance
evaluations completed prior to May 26, 1999. Thereafter, EPA Forms
1900-26 and 1900-27 are obsolete, and contracting officers shall
complete all contractor performance evaluations by use of the National
Institutes of Health's Contractor Performance System in accordance with
EPAAR paragraph (a) of this section.
(d) Construction acquisitions shall be completed by use of the NIH
construction module. Performance evaluations for construction
acquisitions shall be completed in accordance with EPAAR 1509.170-5.
3. Section 1509.170-4 is amended by revising the last sentence of
paragraph (f) to read as follows:
1509.170-4 Definitions
* * * * *
(f) * * * Performance categories include quality, cost control,
timeliness of performance, business relations, compliance with labor
standards, compliance with safety standards, and meeting Small
Disadvantaged Business subcontracting requirements.
4. Section 1509.170-5 is amended by revising paragraph (b) to read
as follows:
1509.170-5 Policy
* * * * *
(b) For service type acquisitions, contracting officers shall use
the National Institutes of Health (NIH) Contractor Performance System
to record evaluations for all contract performance periods expiring
after May 26, 1999. For construction type acquisitions, contracting
officers shall use the NIH system to record evaluations for all
contract performance periods expiring after [the effective date of the
final rule].
* * * * *
5. Section 1509.170-8 is amended by revising paragraph (b) to read
as follows:
1509.170-8 Contractor Performance Report
* * * * *
(b) The performance categories and ratings used in the evaluation
of contractor performance are described in the clause at 1552.209-76.
The NIH system provides instructions to assist contracting officers and
project officers with completing evaluations.
PART 1552--[AMENDED]
6. Section 1552.209-76 is amended by revising the undesignated text
between the section heading and paragraph (a), revising paragraphs
(a)(2), (b)(2) and (b)(4) to read as follows:
1552.209-76 Contractor Performance Evaluations.
As prescribed in section 1509-170-1, insert the following clause in
all applicable solicitations and contracts.
Contractor Performance Evaluations (XX 2002)
The contracting officer shall complete a Contractor Performance
Report (Report) within ninety (90) business days after the end of each
12 months of contract performance (interim Report) or after the last 12
months (or less) of contract performance (final Report) in accordance
with EPAAR 1509.170-5. The contractor shall be evaluated based
[[Page 7660]]
on the following ratings: 0 = Unsatisfactory, 1 = Poor, 2 = Fair, 3 =
Good, 4 = Excellent, 5 = Outstanding, N/A = Not Applicable.
The contractor may be evaluated based on the following performance
categories: Quality, Cost Control, Timeliness of Performance, Business
Relations, Compliance with Labor Standards, Compliance with Safety
Standards, and Meeting Small Disadvantaged Business Subcontracting
Requirements.
(a) * * *
(2) Evaluate contractor performance and assign a rating for
quality, cost control, timeliness of performance, compliance with
labor standards, and compliance with safety standards performance
categories (including a narrative for each rating);
* * * * *
(b) * * *
(2) Assign a rating for the business relations and meeting small
disadvantaged business subcontracting requirements performance
categories (including a narrative for each rating).
* * * * *
(4) Provide any additional information concerning the quality,
cost control, timeliness of performance, compliance with labor
standards, and compliance with safety standards performance
categories if deemed appropriate for the evaluation or future
evaluations (if any), and provide any information regarding
subcontracts, key personnel, and customer satisfaction; and
* * * * *
Dated: January 24, 2002.
John Oliver,
Acting Director, Office of Acquisition Management.
[FR Doc. 02-4068 Filed 2-19-02; 8:45 am]
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